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2019 DIGILAW 170 (UTT)

State of Uttarakhand v. Rajeshwari Sharma

2019-03-07

N.S.DHANIK, RAMESH RANGANATHAN

body2019
JUDGMENT : RAMESH RANGANATHAN, J. 1. The application, seeking condonation of the delay in filing the special appeal, is not opposed by Mr. Tapan Singh, learned counsel for the respondent-writ petitioner, and the delay is, therefore, condoned. 2. This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (M/S) No.272 of 2018 dated 15.02.2018. The State of Uttarakhand is in appeal before us aggrieved by the order of the learned Single Judge, whereby a writ of certiorari was issued quashing the impugned orders dated 05.05.2017 and 28.11.2017 with costs of Rs.3.50 lakhs @ Rs.1.00 lakh per decade to be paid to the widow/petitioner for the harassment which her late husband, a freedom fighter, and she had suffered at the hands of the State agency; a writ of mandamus was issued to the respondents to forthwith start paying the freedom fighter pension, with all benefits as admissible to the dependants, without any further delay to the petitioner who is a 91 years old widow of late Mr. Satyeshwar Sharma; and to further pay the entire arrears of freedom fighter pension, which was otherwise payable to the late husband and his widow after his death, within one month from the date of passing of the order. 3. Facts, to the limited extent necessary, are that the petitioner, and after his demise his widow, have been running from pillar to post seeking grant of freedom fighter pension, under the 1975 Rules, ever since 05.03.1981. They invoked the jurisdiction of this Court by filing Writ Petition (M/S) No.2313 of 2014 which was disposed of, by order dated 29.03.2017, directing the State Government to decide the case of the petitioner in accordance with law as expeditiously as possible, but within a period of four weeks’ from the date of production of a certified copy of the order. The petitioner preferred Special Appeal No.131 of 2017 which was disposed of by order dated 26.04.2017 holding that no interference was called for with the order passed by the learned Single Judge. However, since the period stipulated by the learned Single Judge to decide the appellant’s case had elapsed, the State Government was directed to take a final decision in the matter within two weeks from the date of the order. This order of the Division Bench dated 26.04.2017 was passed, after taking note of the submission of Mr. However, since the period stipulated by the learned Single Judge to decide the appellant’s case had elapsed, the State Government was directed to take a final decision in the matter within two weeks from the date of the order. This order of the Division Bench dated 26.04.2017 was passed, after taking note of the submission of Mr. Tapan Singh, learned counsel, that the Freedom Fighter Pension Rules, 1975 (hereinafter called the “1975 Rules”), was amended, and Rule 12 thereof was deleted on 31.01.2014 after the second respondent had recommended the appellant’s claim for grant of freedom fighter pension by his letter dated 14.08.2013. 4. The order, impugned in Writ Petition (M/S) No.2313 of 2014, was the order passed by the Additional Secretary, Government of Uttarakhand on 13.08.2015 holding that the petitioner could not be given freedom fighter pension, as he was not covered under the definition of Freedom Fighter under the 1975 Rules. Rule 2(A) of the said Rules stipulates that only a person who has suffered imprisonment, for atleast two months during the freedom struggle, would alone be entitled for the pensionary benefits under the 1975 Rules. The petitioner suffered imprisonment of 40 days’ during the freedom movement and, therefore, did not fulfill the requirement of having undergone imprisonment for two months in terms of Rule 2(A) of the 1975 Rules. However Rule 12 of the 1975 Rules, before its deletion on 31.01.2014, stipulated that, notwithstanding anything contained in the Rules, the State Government may grant freedom fighter pension, freedom fighter family pension or compensation to a person who participated in the freedom struggle. 5. Since Rule 12 of the 1975 Rules starts with a non obstante clause, the Government had the power to relax the rigour of the 1975 Rules including Rule 2(A) thereof, which required a freedom fighter to have undergone imprisonment for at least two months’ to be eligible for pension under the 1975 Rules. The petitioner had fulfilled the requirement of Rules 12 of having participated in the freedom struggle, for which he had suffered imprisonment of 40 days. 6. The petitioner had fulfilled the requirement of Rules 12 of having participated in the freedom struggle, for which he had suffered imprisonment of 40 days. 6. Despite the Additional Secretary, Government of Uttarakhand having held, in his order dated 13.08.2015, that the petitioner could not be given freedom fighter pension, as he was not covered or defined as a “freedom fighter” under the 1975 Rules, the learned Single Judge had, nonetheless, directed the State Government, by his order in Writ Petition (M/S) No.2313 of 2014 dated 29.03.2017, to decide the case of the petitioner in accordance with law within a period of six weeks from the date of the order. The State Government did not choose to prefer an appeal thereagainst, and it was the petitioner who filed Special Appeal No.131 of 2017 contending that, instead of directing his application to be considered, the respondents should be directed to grant him freedom fighter family pension. 7. As noted hereinabove, the Division Bench affirmed the order passed by the learned Single Judge, and directed the authorities to consider the petitioner’s claim for grant of pension within a period of two weeks from the date of the order. 8. In the order, impugned in Writ Petition (M/S) No.272 of 2018, reliance was placed by the respondents on Rule 12 having been deleted, by notification dated 31.01.2014, to contend that the respondents had no power to grant relaxation in terms of said rule; and, since the petitioner did not fulfill the criteria, stipulated in Rule 2(A) of the 1975 Rules, he was not entitled to pension. It is this order which was subjected to challenge in Writ Petition (M/S) No.272 of 2018 and, by an elaborate and detailed order dated 15.02.2018, the learned Single Judge observed that the petitioner’s entitlement for freedom fighter pension must be determined at the stage when the Rules were enforced or when he had applied for freedom fighter pension, and any amendment or omission made to Rule 12, by the amendment in 2014, would not affect rights which had matured way back in 1975 or at least in 1981, as the case may be. The learned Single Judge further observed that the use of the word “notwithstanding” in Rule 12 made it clear that, notwithstanding any provision to the contrary, Rule 12 was required to be enforced. The learned Single Judge further observed that the use of the word “notwithstanding” in Rule 12 made it clear that, notwithstanding any provision to the contrary, Rule 12 was required to be enforced. The learned Single Judge allowed the writ petition imposing costs of Rs.3.50 lakhs calculated at Rs.1.00 lakh per decade; and directed the authorities to pay freedom fighter pension to the widow of the deceased freedom fighter. Aggrieved thereby, the present appeal. 9. Mr. Anil K. Bisht, learned Standing Counsel for the State, would submit that the entitlement of any individual for payment of freedom fighter pension can only be in accordance with the 1975 Rules; admittedly, the respondent-writ petitioner does not fulfill the rigour of Rule 2(A) of the 1975 Rules, as he did not undergo imprisonment for a period of two months; no reliance can be placed on Rule 12 since the said Rule was deleted on 31.01.2014, prior even to the earlier order in Writ Petition (M/S) No.2313 of 2014 dated 29.03.2014; and since both the learned Single Judge in Writ Petition (M/S) No.2313 of 2014 dated 29.3.2017, and the Division Bench in Special Appeal No.131 of 2017 dated 26.04.2017, had only directed that the case of the respondent-writ petitioner be considered, the respondents had examined the petitioner’s representation; and, on finding him ineligible, had rejected his claim for freedom fighter pension. 10. On the other hand Mr. 10. On the other hand Mr. Tapan Singh, learned counsel for the respondent-writ petitioner, would submit that the State Government had not chosen to prefer an appeal against the order of the learned Single Judge in Writ Petition (M/S) No.2313 of 2014 dated 29.03.2017; they cannot now be permitted to place reliance on an event which took place long before the said Writ Petition was disposed of; the very fact that the learned Single Judge had directed the appellants to consider the respondent-writ petitioner’s claim for grant of freedom fighter pension, even after the deletion of Rule 12, itself showed that the said deletion had no application to the case of the deceased freedom fighter who had applied for grant of pension long before deletion of Rule 12; his claim had been recommended by the second respondent before deletion of the said Rule; the appellants cannot now be permitted to rely on deletion of Rule 12 since this Court, being well aware of the said Rule having been deleted, had nonetheless directed that his application be considered; and since the order in Writ Petition (M/S) No.2313 of 2014 dated 29.03.2017 has attained finality, and the appellants were obligated to consider the petitioner’s claim in terms of Rule 12, the learned Single Judge was justified in issuing a writ of mandamus directing the authorities to pay, the respondent-writ petitioner, freedom fighter pension. 11. As noted hereinabove, Writ Petition (M/S) No.2313 of 2014 was disposed of by order dated 29.03.2017. In fact, the said Writ Petition was instituted after the deletion of Rule 12 on 31.01.2014. Even before the said Rule was deleted, the petitioner’s claim for grant of freedom fighter pension had been recommended by the District Magistrate by his letter dated 14.08.2013. The order of the learned Single Judge, in Writ Petition (M/S) No.2313 of 2014 dated 29.03.2017, has attained finality in so far as the State Government is concerned, since they had not preferred any appeal there against. As noted hereinabove, it was the deceased freedom fighter who had preferred Special Appeal No.131 of 2017 contending that the learned Single Judge ought not to have directed the respondents to consider his claim, but the Court should have been issued a mandamus directing them to pay him family pension. As noted hereinabove, it was the deceased freedom fighter who had preferred Special Appeal No.131 of 2017 contending that the learned Single Judge ought not to have directed the respondents to consider his claim, but the Court should have been issued a mandamus directing them to pay him family pension. The Division Bench, while affirming the order of the learned Single Judge, had, by its order dated 26.04.2017, directed the authorities to consider the appellant writ petitioner’s claim for grant of freedom fighter pension within two weeks from the date of the order. 12. As noted hereinabove the judgment, in Writ Petition (M/S) No.2313 of 2014 dated 29.03.2017, has attained finality. The judgment of a competent Court is binding inter-parties and cannot be re-agitated in collateral proceedings. An order or judgment of a Court/Tribunal, even if erroneous, is binding inter-parties. The binding character of judgments, of Courts of competent jurisdiction, is in essence a part of the rule of law on which administration of justice is founded. (The Direct Recruit Class-II Engineering Officers’ Association & others vs. State of Maharashtra & others: (1990) 2 SCC 715 ; U.P. State Road Transport Corporation vs. State of U.P. & another: (2005) 1 SCC 444 ). Matters in controversy, in writ proceedings under Article 226, decided after full contest, after affording fair opportunity to the parties to prove their case, by a Court competent to decide it and which proceedings have attained finality, is binding inter-parties. (Gulabchand Chhotalal Parikh vs. State of Bombay (Now Gujarat): AIR 1965 SC 1153 ; State of Punjab vs. Bua Das Kaushal: AIR 1971 SC 1676 ). Once a matter, which was the subject-matter of a lis, stood determined by a competent Court, no party can thereafter be permitted to reopen it in a subsequent litigation. (Swamy Atmananda & others vs. Sri Ramakrishna Tapovanam & others: AIR 2005 SC 2393; Ishwar Dutt vs. Land Acquisition Collector & another: (2005) 7 SCC 190 ). Issues which have been concluded inter-parties cannot be raised against in proceedings inter-parties. (State of Haryana vs. State of Punjab & another: (2004) 12 SCC 673 ). 13. As noted hereinabove, even before Writ Petition (M/S) No.2313 of 2014 was instituted by the deceased, Rule 12 of the 1975 Rules had been deleted. Issues which have been concluded inter-parties cannot be raised against in proceedings inter-parties. (State of Haryana vs. State of Punjab & another: (2004) 12 SCC 673 ). 13. As noted hereinabove, even before Writ Petition (M/S) No.2313 of 2014 was instituted by the deceased, Rule 12 of the 1975 Rules had been deleted. Explanation IV to Section 11 C.P.C, which has been held applicable even to writ proceedings under Article 226 of the Constitution of India, provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation, and every matter coming with the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that, where the parties have had an opportunity of controverting a matter, that should be taken to be the same thing as if the matter had been actually controverted and decided. [Forward Constructions Co. & others vs. Prabhat Mandal (Regd.) Andheri & others AIR 1986 SC 391 ]. The appellant-respondents ought to have raised this plea, of Rule 12 having been deleted, before the learned Single Judge when Writ Petition (M/S) No.2313 of 2014 was being heard. Having permitted the order in Writ Petition (M/S) No.2313 of 2014 dated 29.03.2017 to attain finality, Explanation IV to Section 11 C.P.C. would disable the appellants from raising this plea, of Rule 12 of the 1975 Rules having been deleted, in subsequent legal proceedings. 14. The appellants herein ought to have raised the plea of deletion of Rule 12 in the counter affidavit filed by them in Writ Petition (M/S) No. 2313 of 2014. Since the order passed in the said Writ Petition on 29.03.2017 has attained finality, it is not open to the appellants to now turn round and contend that the respondent-writ petitioner’s claim for freedom fighter pension cannot be granted since the Government lacks the power to relax the rigour of the 1975 Rules on Rule 12 having been deleted. Since the order passed in the said Writ Petition on 29.03.2017 has attained finality, it is not open to the appellants to now turn round and contend that the respondent-writ petitioner’s claim for freedom fighter pension cannot be granted since the Government lacks the power to relax the rigour of the 1975 Rules on Rule 12 having been deleted. Notwithstanding the respondent-writ petitioner having failed to fulfill the requirement of Rule 2(A) of the 1975 Rules, the State Government was obligated, in terms of the order of the learned Single Judge in Writ Petition (M/S) No.2313 of 2014 dated 29.03.2014 as affirmed in Special Appeal No.131 of 2017 dated 26.04.2017, to consider the claim of the respondent-writ petitioner for grant of freedom fighter pension in terms of Rule 12 which was in force even when the petitioner’s claim, for grant of freedom fighter pension, was recommended by the District Magistrate on 14.08.2013. 15. Ordinarily, this Court would not undertake the task of determining whether or not the petitioner is entitled for grant of freedom fighter pension, and would have directed the appellants herein to consider his claim for grant of freedom fighter pension. The learned Single Judge has, however, issued a writ of mandamus directing the authorities to pay the respondent-writ petitioner freedom fighter pension, evidently because the directions issued earlier, to consider the petitioner’s claim for grant of freedom fighter pension, was rejected by the appellants and the learned Single Judge was possibly of the view that no useful purpose would be served in directing the authorities to reconsider the matter. 16. 16. In Comptroller and Auditor-General of India vs. K.S. Jagannathan & another, (1986) 2 SCC 679 , the Supreme Court observed:- “………..There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion………..” 17. We are satisfied that, in the facts and circumstances of the present case, the learned Single Judge was justified in issuing a mandamus directing the authorities to pay freedom fighter pension to the respondent-writ petitioner’s widow in order to prevent further injustice being caused to an old and infirm lady aged more than 91 years. 18. Mr. Anil K. Bisht, learned Standing Counsel for the State of Uttarakhand, would request that, at least imposition of costs of Rs.3.50 lakhs as directed to be paid by the learned Single Judge in the order under appeal, be deleted. 18. Mr. Anil K. Bisht, learned Standing Counsel for the State of Uttarakhand, would request that, at least imposition of costs of Rs.3.50 lakhs as directed to be paid by the learned Single Judge in the order under appeal, be deleted. While the learned Single Judge cannot really be faulted for having imposed costs, taking into consideration the plight of the deceased freedom fighter and his widow who were made to run from pillar to post for several decades in search of freedom fighter pension, the fact remains that such payment of costs would only further burden the public exchequer. Suffice it to modify the order under appeal to the limited extent that, in case the appellants comply with the order of the learned Single Judge, and pay the respondent-writ petitioner freedom fighter pension within four weeks from the date on which a copy of this order is furnished to them by the petitioner or on her behalf, the appellants need not pay costs, of Rs.3.50 lakhs, as directed by the learned Single Judge. It is made clear that, in case the freedom fighter pension with all arrears is not paid within the aforesaid period of four weeks, the order of the learned Single Judge, imposing costs of Rs.3.50 lakhs, would revive; and the respondent-writ petitioner would, thereafter, be entitled to initiate appropriate legal proceedings for violation of the order of the learned Single Judge. 19. Subject to the aforesaid observations, the appeal fails and is, accordingly, dismissed. No costs.